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16— 47372-2 



A COMPILATION 



QUESTIONS OF ORDER 



DECISIONS THEREON. 



PREPARED BY 



WM. J. McDONALD, 
(Late Chief Clerk of the United States Senate.) 



IPRinSTTEI} FOE THE TTSE OE THE SENATE. 



WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 
1881. 



3 



V 



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6, 






QUESTIONS OF OEDER 

AND 

DECISIONS THEREON. 



Absent Senators. 
At the first session First Congress the attendance of absent Senators 
was requested by a circular letter signed by the Senators present 
and addressed to each of the absentees. 
A motion to direct the Sergeant-at-Arnis to send for absent Senators, 
ruled by Chair (Mr. Ferry) not debatable — appeal taken — yeas 
24, nays 3; Chair sustained, but no quorum. (Senate Journal, 
second session Forty-third Congress, 311.) 

Absent Senators, attendance of. 
The Senate, in the absence of a quorum, cannot compel but only request 
the attendance of absent Senators. (Senate Journal, second ses- 
sion Forty-second Congress, April 20, 1872, 581, 582.) 

Adjourn. 

A motion that when the Senate adjourn it be to two o'clock to-morrow 
being made pending another subject, ruled (Mr. Foot in the chair) 
in order. (Senate Journal, first session Thirty-sixth Congress, 469.) 

A motion made in the morning hour to adjourn over to Monday (Vice- 
President Breckenridge) not in order. (Senate Journal, second 
session Thirty-fifth Congress, 136.) 

A motion to adjourn over to Monday cannot be made while another 
matter is pending ; decided by the Senate on an appeal. (Senate 
Journal, second session Thirty-fifth Congress, 145, 146.) 

Amendment 

Made in Committee of the Whole not susceptible of a division when 
the bill comes into the Senate. (Senate Journal, second session 
Forty-first Congress, 716.) 
The tax-bill under consideration ; an amendment was proposed by 
Mr. Conkling; Mr. Howe raised a question of order, viz., that 
the proposed amendment being inconsistent with certain pro- 
visions in the bill already determined by the Senate to remain as 
part of it, was therefore not in order. The President pro tern. 
submitted the question of order to the Senate, and the Senate 
decided the amendment in order; yeas, 27; nays, 21. (Senate 
Journal, second session Forty-first Congress, 970.) 



QUESTIONS OF ORDER AND DECISIONS THEREON. 



Amendment. 

A motion to proceed to the consideration of a subject not open to 

ameDdment ; decided on appeal. — See Motion. (Senate Journal, 

third session Fortieth Congress, 125.) 
A motion to strike out and insert, being by a rule of the Senate 

indivisible, is not susceptible of division in any of its parts. 

Decided by the Senate, on a call by a Senator for a division of the 

part proposed to be inserted, on a motion to strike out and insert- 

(Senate Journal, third session Fortieth Congress, 53.) 
On the question to recede from amendments made by the Senate to 

a bill of the House. It was decided upon a question of order 






On the question to recede from the first branch of the amendment, 
determined in negative. 

On the question to recede from second branch, determined in neg- 
ative. 

The question was then put upon insisting upon each division of the 
amendment separately, and each branch was insisted upon by a 
separate vote. (Senate Journal, first session Sixteenth Congress, 
185, 189, 190.) 

An amendment reported by a committee cannot, under the Thirtieth 
Rule, be amended by increasing the appropriation contained in 
the amendment of the committee. (Senate Journal, second ses- 
sion Thirty-fifth Congress, 388, 389; Senate Journal, first session 
Thirty -fifth Congress, 570.) 

A bill which, as a separate measure, may be passed by a majority 
vote, shall not, when moved as an amendment to a disability bill, 
be ruled out of order for incongruity, inconsistency, or on account 
of not being germane. Decided by the Senate on an appeal from 
the decision of the Chair. (Senate Journal, second session Forty- 
second Congress, December 21, 1871, 80, and May 8, 1872, 687, 
688.) 

A motion is made to strike out and insert: A motion is then made to 
amend the proposed amendment by striking out a part of the 
words proposed by the first amendment to be stricken out ; while 
this latter motion is pending a motion is made to amend the 
words embraced in the last motion to strike out. (Senate Journal, 
first session Forty-third Congress, 390.) Held to be a motion to 
amend in the third degree, and not in order (Mr. Carpenter in 
the chair). (Senate Journal, first session Forty-third Congress, 
395.) An appeal taken but not decided— the questionable amend- 
ment being withdrawn by the mover. 

Note. — The ground of the ahove ruling was this : A motion to strike out and 
insert is by Rule 12 of the Senate one amendment and cannot be divided; any 
amendment to either part of that amendment, whether to the words proposed 
to be stricken out or to those to be inserted is an amendment to an amendment which 



QUESTIONS OF ORDER AND DECISIONS THEREON. 5 

Amendment. 

is made by the Twelfth Rule one indivisible proposition, and is in the second degree — 
Thus: it is proposed to strikeout several sections of a bill, and insert other 
sections in their place. This is the first amendment, or proposition ; it is then 
moved to amend this amendment or proposition by striking out one of the 
sections covered by the amendment to strike out and insert ; this is an amend- 
ment to the amendment, and it may, if adopted, so change its character as to 
iusure its rejection. Any proposition to amend this last motion which is to 
amend an amendment by leaving out certain words embraced in it, whether 
by striking out or inserting is an amendment to an amendment to an amend- 
ment and is in the third degree, and therefore inadmissible. 

The same question recurring in the further progress on the bill, the 
Chair (Mr. Carpenter) submitted it to the decision of the Senate 
(Senate Journal, first session Forty-third Congress, 398), when, 
by unanimous consent, it was settled by the adoption of the fol- 
lowing resolution : 

Resolved, That Eule 12 be so amended, that pending a motion 
to strike out and insert, the part to be stricken out and the part 
to be inserted shall be each regarded, for the purpose of amend- 
ment, as a question, and motions to amend the part to be stricken 
out shall have precedence. (Senate Journal, second session Forty- 
third Congress, 401.) 

Amendment between the Houses. 
The Senate passes a bill of the House (relating to public credit) with 
an amendment. The House agrees to the amendment of the Sen- 
ate with an amendment. The Senate disagrees to the amend, 
ment of the House, and then recedes from its original amend- 
ment.* (Senate Journal, March 2, 1795, vol. 2, p. 177.) 

Amendment to an appeopeiation bill. 

An amendment to an amendment may be laid on the table, without 
carrying the amendment first proposed. (Senate Journal, second 
session Forty-third Congress, 321. In galls in chair, decided on 
appeal, yeas 42, nays 11.) 

An amendment proposing to strike out a clause may be laid on the 
table, in which case the clause remains in the bill. (Senate Jour- 
nal, second session Forty-third Congress, 317; also Congressional 
Eecord, second session Forty-third Congress, 1572, 1573.) 

* But this, according to Jefferson's Manual (Sec. xlv, P. iii) they had no right to do 
for he says they cannot amend their amendment, because by inserting it they have made 
it the text of the bill. How then can they recede from it without a previous absolute 
disagreement by the House ? The House had agreed to the amendment with an 
amendment, and the question before the Senate was that amendment of the House — 
they could amend that or disagree to it — but being a part of the text of the bill by 
their own act and by the conditional agreement of the House, the Senate had lost 
jurisdiction of it. — McD. 



b QUESTIONS OF ORDER AND DECISIONS THEREON. 

Announcement of the vote. 
No motion is in order until tbe announcement of the vote by the 
Chair. (Senate Journal, third session Forty-first Congress, 355.) 

Appeals 

From the decision of the Chair on questions of order may be laid on 
the table. (Idem, 449, 457, 478.) 

Calendar. 
When taken up under an order of the Senate, is to be resumed on a 
subsequent day at the point reached when last up. (Senate 
Journal, second session Forty-first Congress, 785.) 
Friday having been set apart for the private calendar, during the 
morning hour a Senator offered to present a petition, when a 
question of order was raised, viz : Whether under the order set- 
ting apart Friday of each week for the bills on the private calen- 
dar those bills should not be called by the Chair immediately after 
the reading of the Journal. The Vice-President (Breckenridge) 
decided that the private calendar should be treated as other spec- 
ial orders and not be called until after the expiration of the morn- 
ing hour. This decision was appealed from, and sustained by 
the Senate. (Senate Journal, first session Thirty-sixth Congress, 
233; Senate Journal, second session Thirty-fifth Congress, 308.) 

Committee of Investigation and Retrenchment. 
Resolved, That a standing committee of seven, to be known as the 
Committee of Investigation and Eetrenchment, be created to in- 
vestigate and report on such subjects as may be committed to 
it by the Senate. (Senate Journal, second session Forty-second 
Congress, December 14, 1871, 51.) 

Concurrent resolution. 

Resolution that does not require the approval of the President, does 

not require three readings. (Senate Journal, second session 

Nineteenth Congress, 28.) 
If its consideration on the same day on which it is received from the 

House of Representatives be objected to, it must lie over one day, 

under the Twenty-sixth Rule. (Senate Journal, first session 

Forty-third Congress, December 19.) 

Conference. 

Asked by the House after adherence by Senate and refused by Senate. 
(First session Nineteenth Congress, 317.) Bill lost. 

Note. — The ground of refusal here was that the unanimity of the Senate upon 
the amendment to which the House had disagreed would render a conference a 
useless waste of time, and couldnot be granted without waiving its adherence. 

Question of granting may be referred to a committee. (First session 
Nineteenth Congress, 302; first session Twenty-third Congress, 
312 ; also Senate Journal, vol. 5, p. 051.) 



QUESTIONS OF ORDER AND DECISIONS THEREON. 7 

Conference. 

Granted by Senate after adherence, but the right to refuse not denied. 
First session Twenty -third Congress, 112; see also Senate Jour- 
nal, vol. 2, pp. 70, 71; also Senate Journal, vol.5, pp. 657, 661.) 

The report of the committee of couference on the legislative, executive, 
and judicial appropriation bill is under consideration. A motion 
is made to recommit the report to the committee of conference 
with instructions to strike out certain parts of the report. Mr. 
Trumbull raises a question of order, viz: " That the province of 
the committee of conference being to confer freely and fully upon 
the subject of the disagreeing votes of the two houses committed 
to it, it was not competent to limit such conference by instructing 
the committee in any manner in respect to its action at the con- 
ference." The Presiding Officer (Mr. Edmunds) overruled the 
point of order, and decided that the motion to recommit the report 
with instructions was in order. From this decision Mr. Trumbull 
appealed, and the decision of the Chair ivas reversed ; yeas 11, 
nays 47. (Senate Journal, third session Forty-second Congress, 
March 3, 1873, 556. 

Note. — In regard to the foregoing question and the decision of the Senate 
reversing the ruling of the Chair thereon, I would remark : 
All the written law there is on the subject of conferences between the two houses is 
to be found in their First Joint Bide. The importance of providing for the 
settlement of disagreements between them caused them at a very early period 
to adopt this rule, the object of which was to facilitate and to expedite legis- 
lation ; and no mere parliamentary law, however well approved, can stand 
against this written law if in conflict with it. The concluding sentence of 
this rule says that the conferees "shall meet in the conference chamber and 
state to each other, verbally or in writing, as either shall choose, thereasons of 
their respective houses for and against the amendment, and confer freely thereon." 
And confer freely thereon; that is to say, all conferences between the two houses 
under this rule shall be free conferences. Not merely that there shall be free 
discussion in the conference chamber, but that the result of the conference 
shall be the free judgment of the conferees, and not one prescribed in advance, 
or in any way anticipated or shaped by the separate action of either house, 
beyond what might be inferred from its votes and discussions upon the ques- 
tions at issue between them, which votes and discussions are " the reasons of 
their respective houses" which the conferees of each house are to carry with 
them into the conference chamber as their instructions, to be stated to each other 
verbally or in writing, as either shall choose, and confer freely thereon. 

Were this otherwise, either House might, at its sole will and pleasure, by a 
simple motion or order of its own, such, for instance, as this motion to recom- 
mit with instructions, abrogate, in effect, this rule ; and so change and pervert 
its plainest and most clearly expressed purpose and meaning. 

But is there anything in "instructions" inconsistent with a, free conference?' 
There is no further inconsistency than will be found in sending men to a free 
debate or discussion with their hands bound and tied to a foregone conclusion, 
which they are at perfect liberty to discuss, but not to depart from. What 
freedom is that ? Certainly not that contemplated in this joint rule, nor by 
those who made it. They intended it as a means of expediting, not of obstruct- 
ing, legislation ; as a means of reconciling and adjusting disagreements between 
this case, have, and properly, too, ruled and determined. — McD. 



8 questions of order and decisions thereon. 

Conference. 

the Houses, and not of bringing them, through their appointed agents, to 
terms of defiance. Accordingly, they provided that all conferences between 
them upon disputed questions should be absolutely free ! and to that end made 
this Joint Rule, which cannot be changed by the action of one House without 
the concurrence of the other ; and any motion that would lead to that result 
is a motion not in order under this rule, and so the Senate, in its decision in 



Report of committee of conference agreed to by Senate, second ses- 
sion Forty-first Congress, 1083. House disagrees to report, 1085. 
Senate reconsidered its agreement to the report of committee of 
conference, and recommitted the report. (Senate Journal, second 
session Forty-first Congress, 1086 ; also second session Forty- 
second Congress, 600.) 

May report agreement to some, and inability to agree on other 
amendments in disagreement. (Senate Journal, first session 
Twenty-ninth Congress, 523, 521 ; Senate Journal, second session 
Twenty-fourth Congress, 829, 848, 849, 875, 876.) 

Both Houses are to concur in the recommitment of a report of com- 
mittee of conference. (Second session Forty second Congress, 629.) 

Debate. 

A motion to rescind an order for a recess is not debatable where the 
motion for the recess is to be decided without debate. (Decided 
on appeal, Mr. Edmunds in the chair.) (Senate Journal, second 
session Forty-second Congress, 954.) 

A Senator cannot be called to order for irrelevancy in debate. (Vice- 
President Colfax.) (Senate Journal, second session Forty-second 
Congress, 303.) 

Note. — This question was decided by the Senate on an appeal from the 
decision of the chair. 

A motion to direct the Sergeant-at-Arms to request the attendance 
of absent Senators, ruled by the Chair (Mr. Ferry) not debatable ; 
appeal taken; Chair sustained, yeas 24, nays 3; no quorum qu : 
de hoc. (Senate Journal, second session Forty-third Congress, 
311). 

Discharge a committee. 

A motion to discharge a committee from the consideration of a sub- 
ject must be treated as a resolution under the Twenty-sixth Rule, 
and lie one day for consideration. (Senate Journal, third session 



Forty-second Congress, December 20, 1872; yeas 



nays J.6 



p. 98.) 
When a committee is discharged by a vote of the Senate from the 
consideration of a bill, the bill is thereby brought directly before 
the Senate, and may be proceeded with. (Senate Journal, second 
session Forty-first Congress, 425.) 



QUESTIONS OF ORDER AND DECISIONS THEREON. 9 

Division of a question. 

Au amendment to a bill agreed to in Committee of the ^Yhole. Bill 
reported to Senate. On concurring in the amendment (compen- 
sation to female clerks) it was amended, and on concurring as 
amended, Mr. Hamlin asked for a division. The Vice-President 
(Mr. Colfax) was of opinion that the amendment having been 
agreed to in Committee of the Whole, was not susceptible of 
division in the Senate, and submitted the question to the Senate. 
Senate determined it in the negative. (Senate Journal, second 
session Forty-first Congress, 716, 717.) 

On a proposition to strike out and insert, it is not iu order to call 
for a division of the part proposed to be inserted. The motion 
to strike out and insert, by a rule of the Senate being one propo- 
sition and indivisable, is not subject to division in any of its parts. 
Question was submitted to, and decided by, the Senate. (Sen- 
ate Journal, third session Fortieth Congress, 53.) 

A motion is made to commit with certain instructions; a division of 
the question is demanded, and being put on the first branch, which 
was simply to commit, was rejected. Held that the second branch 
of the motion fell with the rejection of the first. (Senate Journal, 
second session Thirty-fifth Congress, 316.) 

On a motion to simply insert words, a division may be called. (Sen- 
ate Journal, second session, Thirty-fifth Congress, 455.) 

A resolution to admit two Senators elect (George Goldthwaite and 
Foster Blodgett) from the State of Georgia, with instructions to 
the committee to make further inquiry into their rights to their 
seats respectively, Mr. Thurman calls for a division of the ques- 
tion, so that the vote be taken separately upon each claimant. 
The Chair (Colfax) rules that the division of the question called 
for could only be allowed by an order or vote of the Senate ; that 
the resolution, containing two distinct propositions : first, to admit 
the claimants; second, to instruct the committee, could only be 
divided under the rule as to one or the other of these, either of 
which would, upon the rejection of the other, stand alone; and 
that the object of the proposed division could only be reached by 
way of an amendment. (Congressional Globe, first session Forty- 
second Congress, part 1, pp. 494, 495.) 

The question of third reading or passage of a bill having a preamble, 
may be divided so as to take either question first on the third 
reading of the bill, and then on the third reading of the preamble, 
and the same on the passage of the bill. (Senate Journal, first 
session Forty-fourth Congress, 102.) 

The Senate makes amendments to a bill of the House ; the House dis- 
agrees ; a motion is made in Senate to recede. Decided upon a 
question of order that the amendments are divisible. Question put 
upon each amendment, and determined in negative. Question then 



10 



QUESTIONS OF ORDER AND DECISIONS THEREON. 



Division op a question. 

put upon insisting upon each amendment separately, aud deter- 
mined in the affirmative. (Senate Journal, first session Sixteenth 
Congress, 185, 189, 190.) 

A series of resolutions is offered ; a division of the question is called 
for ; the question is put upon each resolution separately and all 
agreed to, except the last of the series, which is laid on the table. 
(Senate Journal, second session Twenty-fifth Congress, pp. 83, 
106, 136.) See also where a motion to postpone indefinitely the 
third of a series of resolutions after agreement to two of them, and 
the fourth unacted upon, was not questioned as affecting either 
the resolutions agreed to or the one yet to be disposed of. (Sen- 
ate Journal, first session Forty- fourth Congress, 91-99.) 

Two resolutions are reported from a committee, a division is called for 
and agreed to by separate votes. (Senate Journal, second session 
Twenty-fourth Congress, 204.) 

While the Chair is counting the Senate on a call for a division, no 
motion is in order. (Senate Journal, first session Forty-fourth 
Congress, 817.) 

Enrolled Bills, the Committee on. 

Authorized in examining an enrolled bill (apportionment bill) to cor- 
rect a "clerical error," discovered in a bill after it had passed both 
houses and before enrollment. This was done by a concurrent 
resolution of the two houses. (Senate Journal, second session 
Forty-second Congress, February 1, 1872.) 
Executive or called session op the Senate. 
Legislative business not in order at a special or called session. (Sen- 
ate Journal, third session Forty -second Congress, 612, 614, 617.) 

Germane — amendment. 
A bill to remove disabilities, which requires a vote of two-thirds to pass 
it, is up. A bill known as the " Civil Rights bill " is proposed as an 
amendment. Mr. Thurman raised a question of order, viz : That 
the amendment being a measure which, if it stood by itself, could 
be passed by a majority vote of the Senate, is not an amendment 
that is germane to the bill, and cannot, therefore, be attached to 
it — the bill itself requiring a vote of two thirds of the Senate to 
pass it. The Chair (Mr. Anthony) overruled the point of order 
raised by Mr. Thurman. Mr. Thurman appealed, and after a 
lengthy debate the decision of the Chair was sustained by the 
Senate by yeas and nays — yeas 28, nays 26. (Senate Journal, 
second session Forty-second Congress, page 80, December 21, 
1871, and Senate Journal, second session Forty-second Congress, 
687, 688.) 

Note. — In the ruling on pp. 687, 688 an appeal was taken from the decision of 
the Chair (Colfax) and laid on the table. 



questions of drder and decisions thereon. 1 1 

Incongruous — inconsistent amendment. 
A bill to remove disabilities, which requires a vote of two-thirds to pass 
it, is up. A bill known as the " Civil Eights' 1 bill is proposed as 
au amendment. Mr. Thurman raised a question of order, viz : 
That the amendment being* a measure which, if it stood by itself, 
could be passed by a majority vote of the Senate, is not an amend- 
ment that is germane to the bill and could not be attached to it, the 
bill itSelf requiring a vote of two-thirds of the Senate to pass it. 
The Chair (Mr. Anthony) overruled the point of order raised by 
Mr. Thurman. Mr. Thurman appealed, and after a lengthy de- 
bate the Senate sustained the decision of the Chair; yeas 28, 
nays 26. (Senate Journal, second session Forty-second Congress, 
p. 80, December 21, 1871.) 

Investigation and retrenchment, 

A standing Committee of Investigation and Retrenchment of seven 
Senators. (Senate Journal, second session Forty-Second Con- 
gress, December 14, 1871, 51.) Abolished March — , 1878. 

Irrelevancy in debate. 
A Senator cannot be called to order for irrelevancy in debate. Decided 
on an appeal from the Chair (Colfax), yeas 28 nays 18. (Senate 
Journal, second session Forty-second Congress, 303.) 

Lay on the table. 

A motion to postpone prior orders and take up a bill may be laid on 
the table. (Senate Journal, second session Thirty-fifth Congress, 
383, 384) 

A motion to reconsider may be laid on the table. (Senate Journal, 
first session Thirty-fifth Congress, 224.) 

A motion to direct the Sergeant-at-Arms to request the attendance of 
absent Senators may be laid on the table. (Senate Journal, first 
session Thirty-fifth Congress, 258, 259.) 
Note. — This order was made however by a quorum. 

The preamble to a resolution where a separate vote has been called 
on it on the demand for a division, and when the resolution has 
been agreed to, may be laid on the table. (Senate Journal, second 
session Forty-second Congress, 303.) 

A motion to reconsider a vote on the passage of a bill may be laid on 
the table without carrying the bill. (Senate Journal, second ses- 
sion Forty-second Congress, 809, 974.) 

A motion is made to proceed to the consideration of a resolution. A 
motion is made to lay that motion on the table. A question of 
order is raised : Is the motion to lay on the table in order. The 
Chair (Mr. Anthony) submitted the question to the Senate — mo- 
tion decided not in order; yeas 25, nays 29. (Senate Journal, sec- 
ond session Forty-third Congress, February 15, 1875, 270, 271.) 



12 



QUESTIONS OF ORDER AND DECISIONS 'I HEREON. 



Lay on the table. 

An amendment to an appropriation bill is pending — an amendment to 
the amendment is offered ; a motion is made to lay the amend- 
ment to the amendment on the table under the 30th rule. A ques- 
tion of order is raised, viz : Will not the motion to lay the amend- 
ment to the amendment on the table carry with it the original 
amendment? The Chair (Mr. Ingalls) ruled that it would not. 
From the decision of the Chair an appeal was taken, and Chair 
sustained by yeas and nays; yeas 42, nays 11. (Senate Journal, 
second session Forty-third Congress, February 22, 1875, 321.) 

Pending the reading of a paper a motion to lay a bill on the table en- 
tertained. (Senate Journal, second session Thirty-first Congress 
249.) 

The question of granting leave to withdraw a motion to reconsider 
may be laid on the table without carrying the motion to reconsider 
with it. (Senate Journal, first session Forty-fourth Congress 
February 23, 1876, 228.) 

A motion to reconsider the vote on agreeing to a report of a committee 
of conference may be laid on the table without carrying the re- 
port. (Senate Journal, first session Forty-fourth Congress, Feb- 
ruary 24, 1876, 234.) 

Leave to introduce a bill or resolution without previous 

NOTICE. 

Objection to granting leave may be made after reading it by its title 
and after reading at length for information. (Senate Journal 
first session Thirty-eighth Congress, 537, 538.) In this case the 
resolution was not received. 

Refused to Mr. Benton {after notice) to bring in a joint resolution 
against renewing the charter of the United States Bank. (Sen- 
ate Journal, second session Twenty-first Congress, 125.) Leave 
refused by yeas and nays. 

Refused to Mr. Benton {after notice) to bring in a bill to abolish the 
duty on alum salt. (Senate Journal, second session Twenty-first 
Congress, 142.) Leave refused by yeas and nays. 

Refused to Mr. Benton {after notice) to bring in a joint resolution rel- 
ative to charter of the United States Bank. (Senate Journal, 
first session Twenty-second Congress, 91.) Leave refused by 
yeas and nays. 

Refused to Mr. Benton {after notice) to bring in a bill to make good to 
Missouri proceeds of public lands, &c. (Senate Journal, second 
session Thirty-first Congress, 179.) Leave refused by yeas and 
nays. 

Xot debatable beyond a statement of the provisions. A motion for 
leave to give reasons, entertained, amended and agreed to. (Sen- 
ate Journal, second session Thirty-first Congress, 178, 179. 



questions of order and decisions thereon. 13 

Minority cannot make a report. 
A committee reports by its chairman that they could not agree upon 
a report upon a subject referred to them, and asked to be dis- 
charged from its consideration. A member of the committee 
offered to submit a bill embracing the subject referred. A ques- 
tion of order was raised, that a minority of a committee had no 
power to origiuate or bring in a bill. The Vice-President (Breck- 
inridge) ruled that a minority may be allowed to submit its views. 
(Senate Journal, first session Thirty-fifth Congress, May 5, 1858, 
118.) 

Morning hour. 

The Chair having called for the presentation of petitions, a motion was 
made to take up a bill. The Vice-President (Breckinridge) decided 
that the motion to take up a bill required unanimous consent. 
(Senate Journal, secoud session Thirty-fifth Congress, 319.) 

A motion to adjourn over to Monday not in order during the. (Vice- 
President Breckinridge.) (Senate Journal, second session Thirty- 
fifth Cougress, 136.) 

A motion to postpone previous orders and take up a bill, decided by 
the Senate, on an appeal, to be in order in the. (Senate Journal, 
second session Thirty-fifth Congress, 323.) 

Motion to take up a subject. 
Cannot be amended by substituting another. Mr. Pomeroy moved to 
take up a bill (S. 256). Mr. Edmunds moved to amend by strik- 
ing out S. 256 and inserting Besolution S. 66. Mr. Howard 
raised a question of order, that the motion, being a simple prop- 
osition to take up a subject, was not open to amendment. The 
Chair (Mr. Wade) sustained the point of order raised by Mr. 
Howard. Mr. Edmunds appealed, and the Senate sustained the 
Chair. 

Note. —The ground of this ruling was, that the motion to take up belonged 
to that class of motions "first made first put," and until decided by the Senate 
there could be no amendment to the subject of the motion ; when, being up, 
it could be again removed by a motion to postpone. The motion to amend 
might be a reason for rejecting the motion to take up, and the fate of the pro- 
posed amendment was involved in the decision of that motion; for, if it was 
agreed to, the Senate had decided upon the question as to what business it 
would consider, and, if rejected, the alternative proposition might then be 
made. (See debate, Congressional Globe, January 20, 18(59, 407, 468, 469 ; 
Senate Journal, third session Fortieth Congress, 125.) 

One day for consideration. 
A motion to discharge a committee from a subject is to be treated as 
a resolution, and, if objected to, lie over one day. (Senate Journal, 
third session Forty-second Congress, by yeas and nays, 98.) 



14 



QUESTIONS OF ORDER AND DECISIONS THEREON. 



Order. 

A motion to proceed to tbe consideration of a subject not open to 
amendment (on appeal). (Senate Journal, third session Fortieth 
Congress, 125.) 

A motion Avas made to strike out and insert. A division of the ques- 
tion was called for on the part proposed to be inserted. A ques- 
sion of order was raised on this call. The question was sub- 
mitted to the Senate, and it was decided that a proposition to 
strike out and insert, being by a rule of the Senate indivisible, 
was not susceptible of division in any of its parts. (Senate Jour- 
nal, third session Fortieth Congress, 53.) 

A motion to proceed to the consideration of executive business before 
the announcement of the result of a vote by yeas and nays on a 
pending question, decided by the Senate, on an appeal from the 
decision of the Chair, to be not in order. (Senate Journal, second 
session Fortieth Congress, 7G7.) 

A letter or paper upon a subject not before the Senate for legislation 
cannot be received. Decided by the Senate. (Senate Journal, 
second session Fortieth Congress, 214.) 

An amendment is proposed upon which the yeas and nays are ordered. 
The roll is called, and before the result is declared a question of 
order is raised as to the right of a Senator to vote upon the 
amendment in which his personal interests are involved. A debate 
ensued, pending which a motion is made to proceed to the con- 
sideration of executive business. Upon this motion a question of 
order is raised, and it is sustained by the Senate on an appeal 
from the decision of the Chair. The question then recurred upon 
the question of order raised upon the right of a Senator to vote 
upon a question in which he was personally interested, when a 
demand was made by a Senator that the result of the vote upon 
the amendment be declared, and the Secretary being directed by 
the Chair to call over the roll, it was then announced. The ques- 
tion of order was then laid on the table. 

Note. — The effect of this ruling was to settle the point that neither a question of 
order nor a motion for executive business can he entertained, after the roll is 
called until the result is declared by the Chair. (Semite Journal, second session. 
Fortieth Congress, 766, 767.) 

Order of the Senate. 
A call for the execution of an existing order of the Senate held to be 
a privileged motion and to supersede a special order. (Senate 
Journal, first session Thirty- fifth Congress, 320.) 

Order in debate. 
A Senator (Mr. Saulsbury, January 27, 1863) was called to order by 
the Chair and required to sit down, but refusing to take his seat 
as required, the Chair directed the Sergeant-at Arms to take him 
in custody for disorderly conduct. (Senate Journal, third session 
Thirty-seventh Congress, 158.) 






QUESTIONS OF ORDER AND DECISIONS THEREON. 1") 

Order, questions of. 

The Senate organized at the commencement of the session ; the House 
of Representatives on the 1st of February, I860. In the mean 
time, January 19, a motion is made to refer a bill to a committee. 
Upon this motion a question of order is raised by Mr. Mason, of 
Virginia, viz : In the present condition of the two houses is that 
motion in order ? And being submitted to the Senate, it was, by 
the yeas and nays, decided in the affirmative. (Senate Journal, 
first session Thirty-sixth Congress, 90.) 

Note. — In raising the question of order the ground taken was that no legislative 
business could be entered upon by either house while the other was unorgan- 
ized. This was the session of 1859-'60, when Mr. Pennington, of New Jersey, 
was chosen Speaker on the 1st of February, 1860. 

Paired off. 
A Senator may refuse to answer to his name when called to vote, 
when he has paired off with another Senator. (Senate Journal, 
first session Thirty-sixth Congress, 720.) 

Personal explanation. 

Cannot be made except by unanimous cousent (Vice-President Breck- 
enridge). (Senate Journal, second session Thirty- fifth Congress, 
492, 493.) 

Petitions. 
Mr. Sprague presented a paper, purporting to be resolutions of the 
Board of Trade of Providence, R. I.,, but addressed to Mm, and 
not to the Senate, and asked that it be read. Upon the reading, 
Mr. Hamlin objected to its reception, for the reason that it was a 
private communication to a Senator, and not addressed to the 
Senate. Mr. Spragne thereupon withdrew the paper. (Con- 
gressional Globe, third session Forty-second Congress, January 
8, 1873.) 

Petitions of citizens of a foreign government not received. 

Mr. Smith presented the petition of Robert Holl, a British subject. 
Objected to, and ordered to lie on the table. (Senate Journal, 
first session Twentieth Congress, 38.) 

Vice-President presented the memorial of John A. Barry, a British 
subject, and submitted the question of its reception to the Senate. 
Ordered to lie on the table. (Senate Journal, second session 
Twenty-ninth Congress, 198, 222.) 

Mr. Foster presented papers signed by British subjects. Ruled not 
in order to present communications emanating from citizens of a 
foreign government. (Senate Journal, third session Thirty- 
seventh Congress, 148.) 

Mr. Johnson presented the petition of E. P. Salas, a Spanish subject. 
Chair ruled that, being an alien subject, the petition could not be 
received by the Senate. (Senate Journal, first session Thirty- 
ninth Congress, 470.) 



16 



QUESTIONS OF ORDER AND DECISIONS THEREON. 



Petitions must be sig-ned by the petitioners. 
Mr. Chambers presented a memorial of the American Colonization 
Society. Eeception objected to, on the ground that it was not 
signed ; objection sustained, and memorial not received. (Senate 
Journal, second session Nineteenth Congress, 158.) 

Post-roads. 
Amendments to post-route bills proposing new routes required to be 
referred to the Committee on Post-Offices and Post-Roads before 
offered to any bill. (February 13, 1874, Senate Journal, first 
session Forty- third Congress, 247.) 

Postponement (indefinite) of a bill. 
A House bill for the relief of William RIcG arrahan had been post- 
poned indefinitely at a previous session of the Senate, and fol- 
lowing immemorial usage, notice thereof had been sent to the 
House, in which it originated. At the next session, a motion 
was made by Mr. Morton to proceed again to its consideration. 
The President pro tern. (Mr. Wade), after recapitulating the facts 
of the case, and the usage of the Senate in cases of the indefinite 
postponement of bills of the House of Eepresentatives, the effect 
of which had always been held equivalent to their rejection, sub- 
mitted it as a question of order to the Senate : Is the motion to 
take up a bill that has been indefinitely postponed by a vote of 
the Senate at a previous session of Congress, in order ? After 
a discussion, the Senate decided that the motion of Mr. Morton 
was in order, by a vote of yeas, 27 ; nays, 18. (Senate Journal, 
third session Fortieth Congress, 142, 146, 151, 157.) 

Note.— This decision changed the immemorial practice of the Senate in 
respect to the effect of the indefinite postponement of a hill ; which had heen 
always regarded and treated as its rejection ; and as this decision is without 
limit, except that it he a "previous session" of the same Congress (it may he 
the first, second, or third), under it a hill may he postponed indefinitely at 
the first session, and again called up for consideration at the third session of a 
Congress. The Rule on this subject adopted by the House of Representatives 
is more explicit, more defined, more limited. 

Preamble. 
Leave is asked by the mover of a resolution to withdraw the preamble 
after the resolution had been amended. The Vice President 
(Colfax) decided that the preamble, being part of the resolution, 
and the resolution having been amended, the mover had no 
longer control over it, under the Tenth Pule of the Senate, and 
it therefore could not be withdrawn. (Senate Journal, February 
21, second session Forty-second Congress, 270.) 
When a division has been demanded on the x^reamble to a resolution 
and the resolution has been agreed to, the preamble may be laid 
on the table without carrying the resolution (Vice-President Col- 






QUESTIONS OF ORDER AND DECISIONS THEREON. 17 

Preamble. 

fax). Mr. Edmunds appealed ; appeal laid on the table ; Chair 
sustained. (Senate Journal, second session Forty-second Con- 
gress, 303, 304.) 

Preamble to a bill. 
A separate vote may be had on the question of the third reading of 
a bill, upon the third reading of the preamble also. On the ques- 
tion of the passage of a bill, a division of the question, as to the 
preamble, may be called for, and the question put upon the passage 
of the preamble. (Senate Journal, first session Forty-fourth 



Preamble to a resolution. 
May be laid on the table after the resolution has been agreed to, with- 
out prejudice to the resolution. (Senate Journal, first session 
Forty-fourth Congress, January 24.) 

Privilege. 
It is a breach of privilege for the head of a department, when called 
upon by a resolution of the Senate for information, to communi- 
cate irrelevant matter not embraced in the resolution. (Senate 
Journal, second session Thirty-eighth Congress, 300-312.) 

Privileged question. 

The report of a committee relating to the Senators from the State of 
Indiana being under consideration, pending debate (Mr. Seward 
on the floor), the morning hour expired, when a Senator called for 
the special order of the day. The Vice-President (Mr. Breckenridge) 
ruled that Mr. Seward was still entitled to the floor on a privileged 
question. (Senate Journal, second session Thirty-fifth Congress, 
305.) 

The presentation of credentials and papers involving the right of a 
State to representation in the Senate, held to be. (Senate Jour- 
nal, first session Thirty -fifth Congress, 215, 216.) 

The call of a Senator for the execution of an existing order of the 
Senate held to be a. (Senate Journal, first session Thirty-fifth 
Congress, 320.) 

A Senator cannot be taken off the floor by a privileged question. 
(Senate Journal, second session Fortieth Congress, 217.) 

Privilege op Senators. 
The House of Representatives requests the attendance of two Senators 
to appear and testify before one of its committees. The Senate, 
by resolution, granted permission for their attendance. (Senate 
Journal, second session Fifteenth Congress, 195.) 
2q 



18 questions op order and decisions thereon. 

Quorum. 
In the absence of a quorum, the Senators present may request, but 
cannot compel, the attendance of absent Senators. (Senate Jour- 
nal, second session Forty-second Congress, April 20, 1872, 581, 
582.) 

Beading a paper. 
While Mr. Sumner was reading a paper (being then engaged in de- 
bate) he was called to order by Mr. Davis, who objected to his 
reading the paper on the ground of its irrelevancy to the subject 
before the Senate. The Chair (Mr. Pomeroy) overruled the point 
of order, and decided that Mr. Sumner had the right to read the • 
paper as part of his remarks. Mr. Davis appealed from the decis- 
ion of the Chair. And the question being submitted the Chair 



was sustained. 



Mr. Chandler presented a paper, and asked that it be read. Objected 
to ; and upon a question of order, the Senate decided that a paper 
or letter upon a matter not before the Senate for legislation, if 
objected to, could not be received. (Senate Journal, second ses- 
sion Fortieth Congress, 214.) 

A bill is under consideration ; a motion to postpone the bill indefi- 
nitely is pending ; Mr. Stockton calls for the reading of the bill 
and the amendments made to it; to this objection is made. The 
Chair (Mr. Anthony) decides that the reading of the bill being ob- 
jected to, the question under the Fourteenth Eule must be sub- 
mitted to the Senate. A question of order was here raised, viz : 
That a Senator before being called to vote on the motion to post- 
pone the bill indefinitely had a right to call for the reading of the bill. 
The Chair overruled the question of order, on the ground that by 
the rules of the Senate a bill must have before its passage three 
readings, each of which readings may upon the call of a Senator 
be at length ; that the bill under consideration had had two of 
these readings and could not of right be read at length upon the 
call of a Senator, until the question of the third reading was put 
to the Senate, without the leave of the Senate, and if objected to 
the question must be submitted to the decision of the Senate. 
From the decision an appeal was taken, and after debate the ap- 
peal was on motion laid on the table. (Senate Journal, June 8, 
1872, second session Forty-second Congress, 997-'98.) 

After the reading of a paper has been commenced, and a motion to 
suspend the reading been disagreed to by a vote of the Senate, 
and the reading resumed; a motion to suspend the further read- 
ing decided to be in order, on an appeal from the decision of the 
Chair. (Senate Journal, second session Thirty-first Congress, 
249.) 



mm 



QUESTIONS OF ORDEE AND DECISIONS THEREON. 19 

EECEDE. 

When one house recedes from its amendment to a bill of the other — 
is the bill thereby passed ? The chain of precedents that an 
amendment disagreed to by the originating house, and receded 
from by the amending house, thereby passed the bill, was un- 
broken in the Senate, until the 17th February, 1869, when the 
question was raised upon a motion that the Seuate recede from 
its amendments to a resolution of the House, proposing an amend- 
ment, to the Constitution of the United States. The motion was 
submitted by Mr. Stewart, that the Senate recede from its amend- 
ments and agree to the resolution of the House ; when a ques- 
tion of order was raised by Mr. Pomeroy, viz : If the motion 
to recede was agreed to would not the resolution then stand as 
passed ? This question was submitted to the Senate for its decis- 
ion ; and it was decided in tlie negative. A division of the ques- 
tion on Mr. Stewart's amendment having been demanded, the 
Senate, by a vote of yeas 33, nays 24, receded ; and on the ques- 
tion of the passage of the resolution, it was lost, yeas 31, nays 
27 — not being two-thirds of the Senators present. (Senate Jour- 
nal, third session Fortieth Congress, pp. 285-287.) 

Note. — Hitherto, and subsequent to this ruling, a motion to recede from an 
amendment of the Senate to a bill of the House, being agreed to, had, and 
yet has the effect of passing the bill as it originally came from the House. In 
the case of a resolution proposing an amendment to the Constitution, how- 
ever, it would seem to be otherwise. 

EECEPTION OF RESOLUTIONS OF A PUBLIC MEETING 

Objected to, and Senate refused to receive them. 

Note. — The point involved here seems to have been that the resolutions were a 
mere expression of opinion, with which the Senate had nothing to do, and 
called for no action by the Senate, as where a petition or memorial prays for 
the redress of a grievance, &c. — McD. 

Eeconsider. 

A motion to reconsider may be entered as a privileged motion, but 
its consideration must be determined by a vote of the Senate. 
(Senate Journal, third session Thirty-fifth Congress, 256.) 

A motion to reconsider agreed to, brings the subject directly before 
the Senate. (Idem, 257.) 

The vote on the passage of a bill vetoed by the President may be re- 
considered. (Senate Journal, first session Thirty-fourth Congress, 
621.) 

The vote on the passage of a bill upon a reconsideration cannot be 
again reconsidered except by unanimous consent. (Senate Jour- 
nal, first session Forty-fourth Congress, 606.) 

A resolution is passed by the Senate. A motion is made to reconsider 
the vote on the passage of the resolution. The motion to recon- 



_ 



20 QUESTIONS OF ORDER AND DECISIONS THEREON. 

Beconsider. 

sider was laid on the table. Held that the motion to reconsider 
laid on the table did not carry with it the resolution. (Senate 
Journal, second session Forty-second Congress, 793, May 20, and 
Congressional Globe, p. 3741.) 

A bill passed the Senate ; a motion is made to reconsider the vote on 
the passage of the bill; a motion is made to lay the motion to re- 
consider on the table. A question of order is raised ; can a mo- 
tion to lay a motion to reconsider on the table be made ; and if 
entertained and agreed to, will it carry with it the bill % The 
Vice-President (Colfax) ruled that the motion was in order and 
that if agreed to did not affect the bill. (Senate Journal, second 
session Forty-second Congress, May 21, p. 809. See also Cush- 
ing, 565. 

A motion to reconsider the vote on the passage of a bill may be laid 
on the table without carrying the bill. (Senate Journal, second 
session Forty-second Congress, 809; and Senate Journal, second 
session Forty-second Congress, 974.) 

A motion to reconsider may be taken up on the same day on which it 
is made by a vote of the Senate. (Senate Journal, second session 
Forty-second Congress, 800.) 

A bill (heirs of Asbury Dickins) passed April 7, 1874, on the same day 
a motion to reconsider was entered. (Senate Journal, first ses- 
sion Forty-third Congress, 438, 439.) The motion to reconsider 
held the bill before the Senate until the 3d of March, 1875, when 
it (the motion) was taken up and ordered to lie on the table. Held 
that the bill stood passed. (Senate Journal, second session Forty- 
third Congress, 441.) 

H. Ees. 52, District of Columbia bond bill passed Senate ; a motion 
to reconsider entered by Mr. Wadleigh ; after a brief speech offered 
to withdraw the motion to reconsider ; objected to by Mr. Ingalls; 
question of granting leave to withdraw the motion submitted to 
the Senate ; debate ; motion to lay that question (of leave) on the 
table entertained by the Chair (Mr. Ferry), and the motion to lie 
agreed to by yeas and nays. (Senate Journal, first session Forty- 
fourth Congress, February 24, 1876, 228.) 
The motion to reconsider was then also laid on the table. (Senate 
Journal, first session Forty-fourth Congress, February 24, 1876, 
234.) 

BeGTJLAR ORDER, DEMAND FOR 

The regular order being informally laid over subject to the demand of 
any Senator, cannot be demanded while a Senator is in possession 
of the floor. (Senate Journal, second session Forty-second Con- 
gress, 921.) 



QUESTIONS OF ORDER AND DECISIONS THEREON. 21 

EELEVANCY IN DEBATE. 

A Senator cannot be called to order for irrelevancy in debate. (Sen- 
ate Journal, second session Forty-second Congress, 303.) 

Resolution 
That does not require the approval of the President, does not require 
three readings. (Senate Journal, second session Nineteenth Con- 
gress, 28.) 

Resolution, concurrent. 
Objection being made to the consideration of a resolution of the House 
of Representatives on the same day on which it was received from 
the House, it must like other resolutions, under the Twenty-sixth 
Rule, lie over one day. (Senate Journal, December 19, 1873, first 
session Forty-third Congress.) 

Retrenchment and investigation. 
A standing Committee of Investigation and Retrenchment of seven 
Senators. (Senate Journal, second session Forty-second Con- 
gress, 51. December 14, 1871.) 

Special orders. 

The private calendar when assigned to any particular day is to be 
treated as other special orders and not to be called before the 
expiration of the morning hour. (Senate Journal, first session 
Thirty-sixth Congress, 233.) 

All special orders, if not finally disposed of on the day to which they 
were assigned, shall afterwards be called at one o'clock, with- 
out regard to the hour first fixed for their consideration. (Sen- 
ate Journal, first session Thirty-fifth Congress, 191, 192.) 

Special session of Senate. 
Not in order to present petitions or memorials praying for special 
legislation at a session of the Senate specially called by the Presi- 
dent, in the recess of Congress, and which the Senate could not, 
without the co-operation of the House of Representatives, ma- 
ture. (Special or called session of Senate, March 13, 1873.) 

Special or called session of the Senate. 
Legislative business not in order at a. (Senate Journal, third session 
Forty-second Congress, 612, 614.) 

Strike out. 
A motion to strike out, rejected, does not prevent a subsequent motion 
to strike out a part of the words proposed to be stricken out by 
the original motion. (Senate Journal, first session Twentieth Con- 
gress, 389.) 



22 



QUESTIONS OF OKDER AND DECISIONS THEREON. 



Taxes. 
Bill originating in the Senate containing provisions for raising reve- 
nue laid on the table by House of Representatives on the ground 
that the Senate had no power to originate such bill, and notified 
the Senate of its action. (Senate Journal, second session Forty- 
second Congress, 478 ; report com, 146.) 

Telegraphic dispatch. 
Presented by Vice-President. Reception objected to. Question of 
its reception laid on the table. '(Senate Journal, third session 
Forty-second Congress, March 3, 1873.) 

Third reading of a bill. 
A bill is taken up, considered as in Committee of the Whole, reported 
to the Senate, and ordered to a third reading. On the question, 
Shall the bill be read a third time (then) ! Objected to. Chair 
(Mr. Fitzpatrick, from Alabama) decided that if objected to, the bill 
could not then receive its third reading. This decision sustained 
by the Senate on an appeal. (Senate Journal, third session Thirty- 
fifth Congress, 478.) 

Twenty-first Joint Rule. 

A resolution is submitted and agreed to, to suspend the Twenty-first 
Joint Rule, so as to allow action upon a House bill (Army appro- 
priation bill) before the expiration of six days from the commence- 
ment of a session (August 21, 1856, p. 661). This resolution was 
sent to the House and agreed to (p. 668), and then the bill was 
taken up. (Senate Journal, second session Thirty-fourth Con- 
gress, 661, 668.) 

Mr. Gwin moved to take up a Senate bill (Pacific Railroad bill) on 
the second day of a session. A question of order was raised by 
Mr. Pearce, viz : That under the Twenty-first Joint Rule the mo- 
tion was not in order. The point of order was sustained by the 
Chair (Mr. Breckinridge in chair). (Senate Journal, second ses- 
sion Thirty -fifth Congress, 39.) 

Mr. Sumner moved to take up a Senate bill (elective franchise in the 
District of Columbia). Question of order raised by Mr. McDougal, 
that the motion was not in order under the Twenty-first Joint 
Rule, and point of order sustained (Mr. Foster in the chair). 
(Senate Journal, second session Thirty-ninth Congress, 6.) 

At the third session Forty-first Congress, December 5, 1870, Mr. Sher- 
man moved to take up a House bill (ceding jurisdiction to Ohio). 
The Vice-President called attention of the Senate to previous 
rulings upon similar motions made within the first six days of the 
session ; a debate ensued (Congressional Globe, p. 3). Vice-Presi- 
dent submits question to Senate, and Senate adjourned. De- 
cember 6, question again debated, but no decision come to on the 



QUESTIONS OF ORDER AND DECISIONS THEREON. 23 

Twenty-first Joint Rule. 

question of order. The question then dropped. It would seem 
however, that the former rulings were acquiesced in. This de- 
bate shows a distinction, in the operation of the rule, between 
Senate bills and bills of the House. And it was ruled not to ap- 
ply to Senate bills brought in before six days expired. 

Unfinished business. 
A motion is made to take up a bill ; a question of order is raised on 
the motion to take up. Question of order is overruled by the 
Chair. An appeal is taken, and the Senate adjourned. Held 
that a motion to take up a proposition falling with adjournment, 
the question of order and appeal fell with it. (Congressional 
Record, December 7, 1876, second session Forty-fourth Congress.) 

Vice-President. 
The following letter from the Yice-President {Mr. Calhoun) was read: 

" The Secretary of the Senate : 

" Sir : Having addressed, this morning, to the House of Representatives a com- 
munication, which may claim an investigation of my official conduct while in 
the discharge of the duties of the Department of War, you will please make 
known to the Senate that a sense of propriety forbids me from resuming my 
station till the House has disposed of this subject. 

"J. C. CALHOUN." 
(Senate Journal, second session Nineteenth Congress, 70.) 

Vote. 

A Senator may decline to answer to his name when called to vote, for 
the reason that he is "paired off" with another Senator. (Senate 
Journal, first session Thirty-sixth Congress, 720.) 

No motion in order until the vote on the pending question is 
announced by the Chair. (Senate Journal, third session Forty- 
first Congress, 355.) 

Withdrawal of a motion. 
A resolution having a preamble is under consideration ; after amend- 
ment, a division of the question is called, and the mover of the 
resolution asks leave to withdraw the preamble. Decided by the 
Yice-President (Colfax) that the preamble being apart of the resolu- 
tion, and the resolution having been amended, it was, under the 
Tenth Rule of the Senate, no longer within the control of the 
mover, and could not, without the consent of the Senate, be modi- 
fied or withdrawn. (Senate Journal, 21st February, second 
session Forty-second Congress, 270.) 

Without debate. 

A motion to rescind an order adopted upon a motion which was not 
debatable, must be decided without debate. (On appeal, Ed- 
munds in the chair.) (Senate Journal, second session Forty- 
second Congress, 954.) 



24 



QUESTIONS OF ORDER AND DECISIONS THEREON. 



Yeas and nays. 
Being ordered on a question, a Senator declined to vote on the ground 
that he was " paired " with another Senator. A question of order 
was raised as to his right to refuse to answer to his name when 
called, for the reason stated. The question being submitted to 
the Senate, it was decided that he had the right. (Senate Jour- 
nal, first session Thirty-sixth Congress, 720.) 
Are ordered and the roll is being called ; several Senators when their 
names are called make no response. A Senator inquires of the 
Chair (Mr. Carpenter), when would it be proper for him to call 
the attention of the Senate to the fact that several Senators sit- 
ting in their seats when their names were called by the Secretary 
had refused to vote ! The Chair (Mr. Carpenter) ruled that the 
roll-call could not be interrupted by other proceedings ; but that 
after that was finished and the names of the Senators voting had 
been read over by the Secretary, and before the announcement of 
the result, the question raised by the Senator would be in order. 
Mr. Thurman appealed from this ruling of the Chair ; and after 
debate (Congressional Globe, February 23, 1871, 1602), the Chair 
reversed his decision, and ruled that no motion or other proceed- 
ings could be interposed between the calling of the yeas and nays 
and the announcement of the vote. (Senate Journal, third ses- 
sion Forty-first Congress, 355, and Congressional Globe, 1602.) 

Note. — The rulings of the Chair and the action of the Senate upon this 
question are confused and unsatisfactory. Taking the Sixteenth Rule as the 
ground of proceeding, the proper time to require a Senator to vote would 
seem to be when his name is called by the Secretary. It is then that he is to 
give "special reasons" for refusing to vote, of which the Senate alone is to 
judge — and this judgment is to be rendered without debate and by a vote of 
the Senate. If a Senator is present and refuses to vote when his name is called, 
and he is not then called upon, or required to give, or does not offer to give, 
" special reasons " why he should be " excused by the Senate," it might well be 
held that the Senate has waived its privilege as to him, and the calling of the 
next name on the roll, with a response thereto, forecloses the question, and he 
cannot afterwards be challenged. The Senate has no right to compel or force 
a Senator to vote if, in the discharge of his duty, he should think fit to remain 
silent on a question. All it can do under its rule is to require of him "special 
reasons" for withholding his vote. These, when assigned, it may judge to be 
unsatisfactory ; and if upon such j udgment he should still refuse to vote, it is 
for the Senate to deal with him afterwards, and upon a subsequent proceeding ; 
and in the mean time the roll-call is to proceed to a conclusion, that the ques- 
tion in hand may be disposed of in order. 

The Senate has no power over the voice of any of its members. It can only 
declare the reasons assigned for not voting insufficient or unsatisfactory. It 
may in such case, where a Senator still remains mute, reprimand or censure 
him ; but this is the extent of its power. It cannot compel that voice which 
he may be resolved, for reasons however unsatisfactory to the Senate, still suf- 
ficient for him not to give. The record of the Senate is thus made up, and for 
the part he may have in it he is responsible to the State and the people whom 
he is supposed to represent. The Senate may exercise a larger discretion in 



QUESTIONS OF ORDER AND DECISIONS THEREON. 25 

Yeas and Isays. 

dealing with a contumacious witness who refuses to testify, than with a Sen- 
ator who refuses to vote. In the case of a witness, he refuses to disclose the 
truth, which the Senate, for the purposes of justice, has a legal right to re- 
quire of him; in the case of a Senator, he simply refuses to exercise a right 
which the Constitution gives him without qualification as to how he shall 
exercise, or whether he shall exercise it at all — leaving the matter entirely at 
his own discretion. 

The practice of the Senate in permitting its memhers, without question or 
challenge, to withhold their votes, whenever they have thought fit to do so, 
has been so uniform and unbroken, that, so far as precedent can make it so, 
it has become an absolute parliamentary right, and cannot be questioned with- 
out reversing the steady practice upon which the members of the body have a 
right to rely as their protection in the exercise of their discretion in giving or 
withholding their votes. 

In the case to which this note is appended, the ground upon which certain 
Senators, being present, refused to vote, were, under the Sixteenth Rule, re- 
quired to answer to their names, was that such refusal would leave the Senate 
without a quorum, and thus obstruct its business ; but the absence of a quo- 
rum is provided for, however imperfectly, by the Eighth Rule, aud under that 
rule all subsequent proceedings are to be had until a quorum shall appear in 
the chamber. 

From all this it would seem to be the most orderly way of proceeding to 
require a Senator, when his name is called, either to vote or give to the Senate 
" special reasons," as required by the Sixteenth Rule, for not voting. Should 
he decline to do either, or should he give reasons which the Senate, by a vote, 
shall pronounce unsatisfactory, and he should still withhold his vote, the roll- 
call is to proceed to a conclusion, and the Senator is to be dealt with by the 
Senate by a separate proceeding afterwards — and this that the question before 
the Senate may be disposed of in an orderly way, and not be complicated nor 
shoved out of the way by another and totally different one. Should a Sena- 
tor refusing to vote, not be challenged at the time his name is called, and the 
call be proceeded with, the right of challenge should be considered as waived 
and he exempt from further question ; for what says the Rule? " Each Sena- 
tor called upon shall, unless for special reasons he be excused by the Senate, 
declare, openly and without debate, his assent or dissent to the question." 
(See ruling of the Chair (Mr. Carpenter), Senate Journal, third session Forty- 
first Congress, 355. ) 

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LIBRARY OF CONGRESS 

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